Citation Nr: 0737736 Decision Date: 11/30/07 Archive Date: 12/06/07 DOCKET NO. 07-07 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a mood disorder as secondary to service-connected status post lumbar laminectomy and discectomy. 2. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran served on active duty from August 2003 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In September 2007, the veteran testified at a hearing before the undersigned veterans law judge. A transcript of that hearing has been associated with the claims file. In October 2007, for good cause shown, the Board granted the veteran's motion to advance this case on its docket pursuant to the authority of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). The issue of an increased initial evaluation for depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is credible supporting evidence of a claimed in- service stressor. 2. The veteran has a diagnosis of PTSD due to an in-service stressor. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify In an August 2004 letter, the RO notified the veteran of the evidence required to substantiate a claim for service connection. This letter explained VA's duty to assist the veteran with the development of his claim and informed the veteran what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. This letter also advised the veteran to submit any relevant medical records in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. In the March 2007 SOC, the RO provided the veteran with notice of the evidence necessary to establish a disability rating or effective date in the event of award of the benefit sought. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable and appropriate efforts to assist the veteran with the development of this claim. The RO assisted the veteran by obtaining the service medical records and relevant post-service medical records identified by him. The veteran has also been afforded a VA examination, from which an opinion was obtained. Under these circumstances, the Board finds the requirements of the duty to assist have been satisfied, that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran. II. Analysis of Claims Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1110. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressors. 38 C.F.R. § 3.304(f) (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, a diagnosis of PTSD is documented in VA treatment records dated in 2007 as well as inpatient treatment records from Walter Reed Army Medical Center dated in 2005. Thus, the first requirement, a diagnosis of PTSD, has been satisfied. There is also evidence in this case of a credible in-service stressor. Records show that the veteran received the Army Commendation Medal for meritorious achievement during major combat operations in Sadr City and also received the Legion of Merit. The veteran also submitted a newspaper article that describes an attack on his unit in Sadr City in August 2004. Therefore, the Board finds that there is credible evidence of an in-service stressor due to the veteran's participation in combat operations. VA treatment records dated in January and February 2007 reflect that several medical professionals have diagnosed the veteran with PTSD. VA medical records reflect that several treatment providers have opined that PTSD is combat-related. In January 2007, a VA treatment provider noted a history of combat in Iraq and diagnosed chronic PTSD. In February 2007, a VA treatment provider diagnosed acute combat related PTSD. The Board finds that the evidence of record demonstrates credible evidence of an in-service stressor. As noted, the competent evidence shows that the veteran has been diagnosed with PTSD, and competent medical professionals have opined that the veteran's PTSD is related to combat. Therefore, the criteria to establish a claim of entitlement to service connection for PTSD have been met. ORDER Service connection for PTSD is granted. REMAND The veteran has appealed the issue of a higher initial evaluation for a mood disorder as secondary to service- connected post lumbar laminectomy and discectomy. Psychiatric disabilities are rated according to the General Rating Formula for Mental Disorders. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2007). In light of the grant of service connection for PTSD and in the interest of avoiding pyramiding, this matter is remanded to the RO so that it can be determined whether the manifestations of the veteran's service-connected PTSD and mood disorder disabilities should be rated separately. Accordingly, the case is REMANDED for the following action: In light of the grant of service connection for PTSD above, the RO should take appropriate rating action, including consideration of whether the manifestations of the veteran's PTSD can be distinguished from the veteran's service-connected mood disorder. If the claim for a higher initial rating for a mood disorder remains denied, provide the appellant and his representative an appropriate supplemental statement of the case and an appropriate period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs